Tuesday, March 10, 2015

WTR -- military sentencing

Chief Judge James E. Baker

I have posted a couple of items that came over the transom recently under what I refer to as Worth the Read (WTR). One of them is an item by the current chief judge of the U.S. Court of Appeals for the Armed Forces.

The article follows by identifying
two core military sentencing questions: First, should commanders
have authority to grant clemency? Second, should
the military justice system adopt sentencing guidelines?
With respect to each topic presented, the article does not
attempt to answer the questions nor offer prescriptions.
Rather, it seeks to identify the principal fault lines around
which debate should, or will likely, fall. The article next
presents ‘‘nutshell’’ introductions to additional sentencing
matters that may warrant review as applied in the military
context, including the handling of collateral matters, and
the relationship between age and culpability. However, for
the reasons stated, these issues are not presented in detail
here.

Whether or not a commander may grant post-trial clemency has not been a significant issue until the recent media and political furor over military sexual assaults, specifically when LtGen Franklin set aside a sexual assault conviction after trial. From then, the Congress has taken affirmative steps through legislation to scale back the power of the convening authority post-trial. (And generally, some in the legislature continue on the path to try and remove the convening authority commander from the court-martial process.)

Sentencing guidelines have been a topic of discussion for many years. They were addressed for example during the first Cox Commission on Military Justice in 2001. See Report at 14. and for a longer discussion see Major Steven M. Immel, Development, Adoption, and Implementation of Military Sentencing Guidelines, 165 MIL. L. REV. 169 (2000). Congress has taken a small step toward guidelines, by requiring a dishonorable discharge as a mandatory part of a sentence if convicted of a sexual assault.

Chief Judge Baker does get to newer ground in discussing collateral consequences of a court-martial.

Military justice sentencing raises a number of issues
regarding the handling of the collateral consequences of
court-martial conviction and sentencing not found in civilian
practice.

A reader could conveniently gloss over pages 72-80, and go right to this new and most interesting discussion of nutshells and collateral effects.